CONSEIL COUNCIL DE L’EUROPE OF EUROPE COUR EUROPÉENNE DES DROITS DE L’HOMME EUROPEAN COURT OF HUMAN RIGHTS GRAND CHAMBER CASE OF ANHEUSER-BUSCH INC. v. PORTUGAL (Application no. 73049/01) JUDGMENT STRASBOURG 11 January 2007 ANHEUSER-BUSCH INC. v. PORTUGAL JUDGMENT 3 In the case of Anheuser-Busch Inc. v. Portugal, The European Court of Human Rights, sitting as a Grand Chamber composed of: Luzius Wildhaber, President, Christos Rozakis, Nicolas Bratza, Peer Lorenzen, Giovanni Bonello, Lucius Caflisch, Loukis Loucaides, Ireneu Cabral Barreto, Corneliu Bîrsan, Josep Casadevall, Rait Maruste, Elisabeth Steiner, Stanislav Pavlovschi, Lech Garlicki, Khanlar Hajiyev, Davíd Thór Björgvinsson, Dragoljub Popović, judges, and Erik Fribergh, Registrar, Having deliberated in private on 28 June and 29 November 2006, Delivers the following judgment, which was adopted on the last- mentioned date: PROCEDURE 1. The case originated in an application (no. 73049/01) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an American company, Anheuser-Busch Inc. (“the applicant company”), on 23 July 2001. 2. The applicant company was represented by Mr D. Ohlgart and Mr B. Goebel of Lovells International Law Office, Madrid (Spain). The Portuguese Government (“the Government”) were represented by their Agent, Mr J. Miguel, Deputy Attorney-General. 3. In its application, the applicant company alleged a violation of its right to the peaceful enjoyment of its possessions as a result of being deprived of the right to use a trade mark. 4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that 4 ANHEUSER-BUSCH INC. v. PORTUGAL JUDGMENT would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1). 6. On 11 January 2005, after a hearing dealing with both the question of admissibility and the merits (Rule 54 § 3), the application was declared admissible by a Chamber of that Section. 7. On 11 October 2005 a Chamber of that Section composed of Jean- Paul Costa, President, András Baka, Ireneu Cabral Barreto, Karel Jungwiert, Volodymyr Butkevych, Antonella Mularoni and Danutė Jočienė, judges, and Stanley Naismith, Deputy Section Registrar, delivered a judgment in which it held by five votes to two that there had been no violation of Article 1 of Protocol No. 1. A joint dissenting opinion by Judges Costa and Cabral Barreto was appended to the judgment. 8. On 11 January 2006 the applicant company requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. A panel of the Grand Chamber granted that request on 15 February 2006. 9. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. At the final deliberations Giovanni Bonello and Dragoljub Popović, substitute judges, replaced Jean-Paul Costa and Boštjan M. Zupančič, who were unable to take part in the further consideration of the case (Rule 24 § 3). Lucius Caflisch continued to sit following the expiration of his term in office, in accordance with Article 23 § 7 of the Convention and Rule 24 § 4. 10. The applicant company and the Government each filed submissions on the merits. 11. A hearing took place in public in the Human Rights Building, Strasbourg, on 28 June 2006 (Rule 59 § 3). There appeared before the Court: (a) for the Government Mr J. MIGUEL, Deputy Attorney-General, Agent, Mr A. CAMPINOS, Director of the National Institute of Industrial Property, Counsel; ANHEUSER-BUSCH INC. v. PORTUGAL JUDGMENT 5 (b) for the applicant company Mr B. GOEBEL, Mr D. OHLGART, Ms C. SCHULTE, lawyers, Counsel, Mr J. PIMENTA, lawyer, Mr F.Z. HELLWIG, Senior in-house Counsel, Anheuser-Busch Inc., Advisers. The Court heard addresses by Mr Goebel and Mr Miguel and their replies to questions. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 12. The applicant is an American public company whose registered office is in Saint Louis, Missouri (United States of America). It produces and sells beer under the brand name “Budweiser” in a number of countries around the world. A. Background to the case 13. The applicant company has sold beer in the United States under the “Budweiser” mark since at least 1876. It broke into the European markets in the 1980s and says that it began to sell “Budweiser” beer in Portugal in July 1986. 14. The applicant company’s decision to extend the sale of its beers to Europe led to a dispute with a Czechoslovak – now Czech – company called Budějovický Budvar. Budějovický Budvar produces a beer in the town of České Budějovice in Bohemia (Czech Republic) which is also called “Budweiser”. The term comes from Budweis, the German name for the town. The applicant company alleges that Budějovický Budvar has only been marketing beer under the “Budweiser” name since 1895, whereas Budějovický Budvar says that it has been entitled to use that appellation since 1265, when King Ottakar II of Bohemia conferred the right to produce the beer on a number of independent brewers in České Budějovice (Budweis in German). The brewers used a special technique and beers produced by this method became known by the term “Budweiser”, just as beers produced using the methods of another Czech town, Plzeň (Pilsen in German), became known as “Pilsner”. 6 ANHEUSER-BUSCH INC. v. PORTUGAL JUDGMENT 15. According to the information before the Court, the applicant company concluded two agreements in 1911 and 1939 with Budějovický Budvar concerning the distribution and sale of “Budweiser” beer in the United States. However, these agreements did not deal with the question of the right to use the “Budweiser” name in Europe. As a result, the two companies became embroiled in a series of legal proceedings over the right to use the term “Budweiser” in various European countries, including Portugal. B. Application for registration of the trade mark in Portugal 16. On 19 May 1981 the applicant company applied to the National Institute for Industrial Property (NIIP) to register “Budweiser” as a trade mark on the industrial-property register. The NIIP did not grant the application immediately because it was opposed by Budějovický Budvar, which alleged that “Budweiser Bier” had been registered in its name as an appellation of origin since 1968. Budějovický Budvar had effected the registration under the terms of the Lisbon Agreement of 31 October 1958 for the Protection of Appellations of Origin and their International Registration (see paragraph 33 below). 17. Negotiations took place throughout the 1980s with a view to resolving the dispute between the applicant company and Budějovický Budvar. According to the applicant company, in 1982 the negotiations even led to an agreement being drawn up concerning the use of the “Budweiser” trade mark in Portugal and other European countries. However, the talks eventually broke down and in June 1989 the applicant company instructed lawyers in Portugal to commence court proceedings. 18. The applicant company then applied to the Lisbon Court of First Instance on 10 November 1989 for an order cancelling Budějovický Budvar’s registration. A summons was served on Budějovický Budvar, but it did not file a defence. In a judgment of 8 March 1995 (which, in the absence of an appeal, became final), the Lisbon Court of First Instance granted the applicant company’s application on the ground that the product to which the registration referred, namely the beer known as “Budweiser Bier”, was not an appellation of origin or indication of source. The Court of First Instance noted that under the terms of the Lisbon Agreement of 31 October 1958 such protection was reserved to the geographical name of a country, region, or locality, which served to designate a product originating therein, the quality and characteristics of which were due exclusively or essentially to the geographical environment, including natural and human factors. “Budweiser” did not come within this category. The registration was therefore cancelled. 19. Following the cancellation of the appellation of origin, and despite the fact that Budějovický Budvar had challenged the application for ANHEUSER-BUSCH INC. v. PORTUGAL JUDGMENT 7 registration under the opposition procedure, the NIIP registered the “Budweiser” trade mark in the applicant company’s name on 20 June 1995 in a decision that was published on 8 November 1995. C. The proceedings in the Portuguese courts 20. On 8 February 1996 Budějovický Budvar appealed to the Lisbon Court of First Instance against the NIIP’s decision on the strength of an agreement between the governments of the Portuguese Republic and the Czechoslovak Socialist Republic on the Protection of Indications of Source, Appellations of Origin and Other Geographical and Similar Designations (“the Bilateral Agreement”), which was signed in Lisbon on 10 January 1986 and which came into force on 7 March 1987, after publication in the Official Gazette. As required by law, the applicant company was invited by the court to take part in the proceedings as an interested party. In June 1996 it was served with the originating summons that had been lodged by Budějovický Budvar. 21. In a judgment of 18 July 1998, the Lisbon Court of First Instance dismissed the appeal. It found that the only intellectual property eligible for protection under Portuguese law and the Bilateral Agreement (which, according to the court was no longer in force, owing to the disappearance of one of the contracting parties, Czechoslovakia) was the “Českobudějovický Budvar” appellation of origin, not the “Budweiser” trade mark.